XCHRX YU TAI HING COMPANY LIMITED v. GLORY EPOCH INVESTMENT LIMITED

1994, No. A3347

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Date of delivery of judgment: 9 May 1994

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J U D G M E N T

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I have read the papers, and Mr Graham, as usual, has very kindly produced his outline of submissions which I have also read in the meantime, during the exchanges between Bar and Bench. I do not think I need trouble Mr Chan, leading council for the plaintiff.

1. The defendant would like to proceed with the demolition and the proposed construction next door to the plaintiff's premises. The plaintiff has a great many anxieties. The plaintiff's expert is Dr Leung and the defendant's is Dr Ng. The plaintiff is desirous of obtaining the advice of a further expert who would require some seven days to consider the matters asked of him to report to them.

2. This is a summons for directions, the essence of which lies in the proposed cross-examination of the witnesses upon their respective affidavits or affirmations. Alternatively, it is sought by the defendant to convert the two days reserved starting from tomorrow into a speedy trial. As for the application for cross-examination, I have some genuine concern as to whether the end result would constructively assist the court in resolving the dispute at this interlocutory stage for the pending ex parte injunction which no doubt will be asked to be continued tomorrow. Mr Graham has assured the court that cross-examination would satisfactorily demonstrate to this court that the defendant's construction ought not be disturbed or further delayed. There may be substance in what is being stated by Mr Graham, but it is evident that cross-examination sought would not be comprehensive as far as the plaintiff is concerned. The plaintiff has intimated that he will rely on the evidence of a further expert to come. In the circumstances, part cross-examination would hardly be of any real assistance to the court in the attempted resolution of the injunction or injunction continuation application.

3. As for speedy trial, there is no justification for the case to be given priority. I sought assurance from counsel as to whether if I acceded to the application for speedy trial, the matter could be concluded within the two days allotted and no more. Mr Graham quite fairly indicated to me that he was in no position to provide such an assurance. As for the plaintiff, so I have been told, they would not be able to take a speedy trial until the end of this month.

4. For all these reasons, the defendant has not satisfied me that cross-examination could be useful and ought to be granted on the affidavits or affirmations. Alternatively the prayer in the summons for direction for a speedy trial should also not be acceded to.

5. I am grateful to Mr Graham for analysing the situation so clearly so that a decision could be arrived at instantaneously. The application for directions should therefore be dismissed and costs of the application reserved. The parties had been given the preliminary suggestion of the court as to how in practical terms the interim disagreement could be, as it were, ironed out. Subject to Mr Graham's observation, I propose to certify the case fit for two counsel. (Pause) I order accordingly.